W. C. No. 4-564-875.Industrial Claim Appeals Office.
September 5, 2007.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) dated March 1, 2007, together with certain preliminary orders, that reopened the claim, ordered the respondents to pay temporary total disability benefits, and further ordered the respondents to designate an orthopedic surgeon to provide additional medical treatment to the claimant and pay the corresponding costs. We affirm.
This matter proceeded to hearing on May 3, 2006 on the claimant’s request to reopen her claim, award her temporary total disability benefits, and grant medical benefits in the nature of knee surgery and corresponding medical treatment. The claimant presented the only testimony and the parties both introduced exhibits into the record. On June 22, 2006, the ALJ subsequently ordered the claimant, without objection, to attend an independent medical examination with Dr. Hughes in order to address the relationship, if any, between the claimant’s industrial injury and her current medical condition, as well as surgery recommendations and work restrictions. See § 8-43-502(3), C.R.S. 2006 (ALJ may cause employee to be examined when necessary to resolve issue of medical fact or opinion). On November 17, 2006, the ALJ granted the respondents’ request that the claimant attend an independent medical examination conducted by Dr. Raschbacher. On March 1, 2007, the ALJ entered her final Findings of Fact, Conclusions of Law, and Order (Order).
The ALJ’s findings of fact are summarized as follows. The claimant sustained an admitted industrial injury to her left knee on September 30, 2002. The claimant received
Page 2
medical treatment and the respondents filed a final admission of liability on January 7, 2003. The claimant then sought medical treatment from Dr. Wyland. Dr. Wyland opined that the claimant’s physical difficulties with her left knee were “secondary to the injury, which occurred at work in September of 2002.” Order at 3, ¶ 8. Dr. Wyland recommended surgery in order to improve the claimant’s knee condition.
Dr. Hughes opined that the claimant had not reached maximum medical improvement for her industrial injury and recommended an orthopedic surgical evaluation, including consideration of arthroscopic debridement of the claimant’s left knee. Dr. Raschbacher initially opined that, although the claimant suffered from chondromalacia and patellofemoral syndrome of the left knee prior to her injury, the claimant’s industrial injury made the chondromalacia symptomatic. He essentially agreed “with Dr. Hughes’ assessment and recommendations, including anticipated duration of treatment after surgery. . . .” Order at 3, ¶ 10. He also opined that the claimant was not at maximum medical improvement on January 2, 2003, as alleged by a treating physician. However, he essentially reversed his opinion after stating that he reviewed additional medical records in response to a letter from the respondents’ attorney.
The ALJ found that the claimant’s industrial injury to her left knee worsened since April 26, 2005, the date of Dr. Wyland’s report. She also found that the claimant was unable to perform her regular job as of that date. Moreover, the ALJ found that the claimant was entitled to medical treatment, including surgery. The ALJ therefore ordered the respondents to pay temporary total disability benefits from April 26, 2005. She also ordered the respondents to designate and pay for an orthopedic surgeon to perform surgery on the claimant and provide corresponding treatment.
The respondents assert that the record is devoid of evidence establishing that the claimant could not perform her regular employment. Thus, the respondents argue that the ALJ erred in determining that the claimant is entitled to temporary total disability benefits. Temporary total disability benefits are payable under § 8-42-103, C.R.S. 2006 and § 8-42-105, C.R.S. 2006, if: (1) the injury or disease causes disability; (2) the injured employee leaves work as a result of the injury; (3) the temporary disability is total and lasts more than “three regular working days.” PDM Molding, Inc. v. Stanberg, 898 P.2d 542
(Colo. 1995). As noted by the respondents, the claimant must establish that her medical incapacity has caused a loss of wage earning capacity evidenced by her inability to resume her pre-injury work. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). The respondents allege that the claimant failed to introduce evidence either describing her job duties or indicating that those duties conflicted with her medical restrictions. We find no error in the award of temporary total disability benefits.
Page 3
The ALJ expressly credited Dr. Hughes’ opinion that the claimant not kneel or crawl, and that squatting be limited, and found that the respondents had not offered the claimant employment consistent with those restrictions. Order at 5, ¶ 17. The respondents submitted Dr. Hughes’ report, dated October 20, 2006, to the ALJ as ordered. The report indicates the work restrictions found by the ALJ. Dr. Hughes’ Report (October 20, 2006) at 5. Moreover, a vocational evaluation report prepared on June 3, 2003 and introduced into evidence describes the claimant’s job duties as constituting a light position requiring lifting up to 20 pounds occasionally and ten pounds frequently. The report also indicates that the claimant’s transferable skills include “[i]nserting, throwing, dumping, or placing materials in or removing them from machines or equipment. . . .” Exhibit R at 4-5. The ALJ determines, as a question of fact, based on consideration of the totality of the evidence, whether disability has been established. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999).
Dr. Wyland opined on April 26, 2005 that the claimant was in need of surgery. Exhibit 1. The claimant testified that from the last time she saw Dr. Wyland she has been in a lot of pain has problems walking and collapses. Tr. at 21. Lay evidence has been accepted as sufficient proof of both causation and the inability to work. Lymburn v. Symbios Logic, supra. Because the issue is factual in nature, we must uphold the ALJ(s determination if supported by substantial evidence in the record Lymburn v. Symbios Logic, supra. We conclude that the record as a whole contains sufficient evidence to support the ALJ’s finding that the claimant has a medical incapacity that prevented the claimant from resuming her pre-injury work.
The respondents also complain that the ALJ denied them due process by ordering them to designate a surgeon and pay for knee surgery after the ALJ precluded the claimant from litigating the issue of changing physicians. At the outset of the hearing the ALJ and the parties sorted out the issues to be determined. The claimant sought medical benefits, including surgery. Tr. at 6. She wanted Dr. Wyland to perform the surgery. Tr. at 10. However, the ALJ construed the claimant’s request that Dr. Wyland perform her surgery to be a request for a change of physician, which the claimant did not indicate on her application, and disallowed the issue of a change of physician. Tr. at 11. However, the ALJ allowed the claimant to proceed with her request for medical benefits, including surgery. Tr. at 6, 24. The respondents assert that they were surprised by the ALJ’s ruling and not prepared to go forward on the issue of designating a physician.
Contrary to the respondents’ assertion, the ALJ did not designate a treating physician. Instead, she ordered the respondents to provide knee surgery, which included the
Page 4
requirement that the respondents designate an orthopedic surgeon. Instead, the ALJ’s direction to designate a surgeon emanates from her determination that the claimant required, and was entitled to, additional medical benefits. The respondents also argue that the ALJ’s order to provide surgery, based upon Dr. Wyland’s recommendation, is equivalent to ordering a change of physicians, contrary to her ruling to exclude change of physicians as an issue for hearing. This is because, according to the respondents, Dr. Wyland was not an authorized treating physician. The ALJ was persuaded by the opinions of both Dr. Wyland and Dr. Hughes that the claimant needed knee surgery. Order at 5, ¶ 18. The ALJ merely awarded the claimant medical benefits with enough specificity to address the need for surgery. Cf. Webb v. Adams County, W.C. No. 4-309-561 (August 17, 1999) (respondents ordered to designate physicians to treat claimant pursuant to stipulation in event they failed to overcome division-sponsored independent medical examination). In fact, the ALJ’s order that the respondents designate the surgeon supports the ALJ’s decision to exclude from hearing the issue of a change of provider. See Wright v. City and County of Denver, W.C. No. 4-172-294
(December 4, 1995) (reopening triggers respondents’ duty to designate treating physician).
Finally, the respondents assert that the claimant did not show a worsening of conditions sufficient to reopen her claim. In order to reopen a claim pursuant to § 8-43-303(1), C.R.S. 2006 the claimant must prove a worsening of his condition that is causally related to the industrial injury. Moreover, the worsened condition must warrant further benefits. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002); Richards v. Industrial Claim Appeals Office, 996 P.2d 756
(Colo.App. 2000). The reopening authority under the provisions of § 8-43-303 is permissive, and whether to reopen a prior award when the statutory criteria have been met is left to the sound discretion of the ALJ. Renz v. Larimer County Sch. Dist. Poudre R-1, 924 P.2d 1177
(Colo.App. 1996). A claimant has the burden of proof in seeking to reopen a claim. Cordova v. Industrial Claim Appeals Office supra. The determination whether to reopen a claim is discretionary with the ALJ and, absent fraud or a clear abuse of that discretion, we may not disturb the ALJ’s order. Osborne v. Industrial Claim Appeals Office, 725 P.2d 850 (Colo.App. 1986). An abuse of discretion is only shown where the order exceeds the bounds of reason, such as where it is unsupported by substantial evidence or is contrary to law. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993).
The respondents argue that the claimant failed to establish the need for medical treatment that was unforeseen at the time her claim closed and refers us to our decision in Siminoe v. Worldwide Flight Services, Inc., W.C. No. 4-535-290 (November 21. 2006). However, i Siminoe, we stated that reopening a claim was “appropriate where the deterioration in the claimant’s condition causes increased permanent disability, the need for
Page 5
additional medical treatment which was not foreseeable when the claim was closed, or additional temporary disability.” Siminoe, slip op. at 3. Here, the ALJ found both additional temporary disability and the need for additional medical benefits. In any event, the ALJ credited Dr. Hughes’ opinion that the claimant needed knee surgery due to her work-related injury, as well as Dr. Wyland’s opinion that the claimant’s industrial injury resulted in severe arthrosis, a damaged patellofemoral compartment, and a meniscus tear required “surgical management.” Dr. Wyland also noted that the claimant’s left knee condition had worsened. Order at 3, ¶¶ 8-9. These findings are supported by the record. Dr. Hughes’ Report (October 20, 2006) at 4-5; Exhibit 1 at 1-2.
IT IS THEREFORE ORDERED that the ALJ(s order dated March 1, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
EVELYN ROMERO, WESTMINSTER, CO, (Claimant).
PRINTER PERSONNEL, Attn: JULIE HANCOCK, CO, (Employer).
Page 6
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MALCOLM CHANDLER, ENGLEWOOD, CO, (Insurer).
ZARLENGO, MOTT, ZARLENGO AND WINBOURN, P.C., Attn: SCOTT M BUSSER, ESQ., DENVER, CO, 80209 (For Respondents).